Satanic Temple, Inc. v. City of Bos.

684 F.Supp.3d 21

The SATANIC TEMPLE, INC., Plaintiff, v. CITY OF BOSTON, Defendant.

Civil Action No. 21-CV-10102-AK

United States District Court, D. Massachusetts

Signed July 31, 2023

Matt Kezhaya, Pro Hac Vice, Crown Law, Minneapolis, MN, Brendan Durrigan, Durrigan Law, Boston, MA, for Plaintiff.

Edward F. Whitesell, Jr., Nicole M. O'Connor, Robert S. Arcangeli, Elizabeth L. Bostwick, City of Boston Law Department, Boston, MA, Nailah A. Freeman, Ogletree Deakins Nash Smoak & Stewart, P.C., Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

A. KELLEY, United States District Judge

Plaintiff The Satanic Temple, Inc. ("TST"), brings this suit against Defendant City of Boston (the "City"), alleging that the Boston City Council (the "City Council") violated TST's First Amendment rights under the United States Constitution and its free exercise rights under the Massachusetts Constitution when City Councilors did not extend an invitation to TST or allow its request to give the invocation before the start of one of its weekly meetings. Both parties have filed motions for summary judgment. [See Dkt. 98; Dkt. 101]. For the following reasons, the City's motion for summary judgment [Dkt. 98] is GRANTED, and TST's motion for summary judgment [Dkt. 101] is DENIED.

I. BACKGROUND

In evaluating the cross-motions for summary judgment, the Court relies on the parties' statements of material facts, responses thereto, and any attached exhibits the parties have submitted. [See Dkt. 100; Dkt. 104; Dkt. 110; Dkt. 112]. The Court accepts as true each material fact to the extent it has not been disputed by the opposing party and considers contested each material fact that either party has disputed. Unless otherwise noted, the facts below are undisputed.

A. Invocations at City Council Meetings

City Council holds meetings every week, usually on Wednesday, except on holidays or when otherwise ordered. [Dkt. 112 at ¶¶ 2-3]. There are approximately thirty-five meetings per year. [Id. at ¶ 4]. Time is set aside at the beginning of each meeting for an invited member of the public, often clergy, to say a few words. [Id. at ¶ 5]. These invocations have been given at City Council meetings, or prior iterations of the City's local government, since the 1800s.¹ [Id. at ¶ 1]. At the beginning of the calendar year, City Council staff prepares a schedule of dates for City Council meetings, including the name of the City Councilor responsible for securing an invocation speaker for each meeting. [Id. at ¶ 8]. While the staff attempts to assign the same number of dates to each City Councilor, it is not always possible. [Id. at ¶ 7].

The selection of the invocation speaker is left to the discretion of individual City Councilors and their staffs. [Id. at ¶ 11]. An individual must receive an invitation from a City Councilor to offer an invocation prior to Council meetings, and the City Council does not take requests to give an invocation. [Id. at ¶ 13]. There are no guidelines or rules governing whom a City Councilor may invite to give an invocation, and no formal, written policy exists. [Id. at ¶ 12]. The City states that invocation invitations are "based upon personal relationships the Councilors have and the work that the individual invitee does in the district or for their constituents." [Id. at ¶ 18]. In 2016, in response to TST's first request for an invitation to give the invocation, Michelle Wu ("Wu"), a former City Councilor who is now the Mayor of Boston, described the practice, in writing:

[E]ach Councilor has the chance to invite 2-3 faith leaders per year to deliver the opening invocation at one of our Council meetings. The invitations are often used to recognize faith leaders who are active in the community and organizations that are representative of their districts. There is no restriction or criteria based on any Councilors' religious preferences. Many of us have a long list of folks we'd like to invite but haven't been able to accommodate.

[Dkt. 100-11 at 2]. Another City employee separately explained that Councilors "have invited members from their district . . . who are active in their neighborhood and engaged community members in addition to being members of the clergy." [Dkt. 104-1 at 23].

Other City Council members and their staff describe the invocation invitations in similar terms. Christine O'Donnell ("O'Donnell"), who is the Compliance Director and counsel for the City Council, explained in a deposition that "the invitations for the invocation are based upon personal relationships the [C]ouncilors have," in other words, "people that they have relationships with because of their districts. It might be work that the individual does in their districts or does for their constituents. That has been the policy." [Dkt. 100-1 at 52:22-24, 53:7-12]. When asked whether there was a basis for limiting who may participate in the invocations, O'Donnell responded, "It's by invitation. So, the limit would be if you don't get an invitation, you don't give the invocation." [Id. at 152:20-153:1]. TST has characterized the selection process as City Councilors "extend[ing] invites only to their friends and political allies." [Dkt. 110 at ¶ 2].

One invocation speaker, Anne Marie Rousseau ("Rousseau"), gave an invocation annually from 2012 to 2020 at the invitation of former Councilor Matt O'Malley ("O'Malley"). [Dkt. 112 at ¶ 17]. In addition to volunteering for Councilor O'Malley's campaign, Rosseau was co-chair of the Ward 11 Democratic Committee, co-founded JP Progressives, a "local community-based organization [ ] concerned about issues and electing progressive candidates," and worked at Metro Housing Boston. [Dkt. 100-7 at 7:17-22, 8:1-2]. She was also an on-call minister at Hope Central Church in Jamaica Plain, which is affiliated with the United Church of Christ and the Disciples of Christ, and she had been a chaplain at another organization. [Id. at 7:23-8:1, 9:9-13, 11:13-20]. Rosseau also "knew the councilor personally" and "had interacted with him many times." [Id. at 8:3-4]. When extending an invitation to a different community leader to give the invocation at a meeting, former City Councilor Kim Janey acknowledged that the "Unitarian Universalist Urban Ministry, under [the reverend's] leadership, is deeply active in the Roxbury community, providing and hosting [a] wide array of services and events. [The reverend's] work to restore the First Church of Roxbury, and continued efforts to reinvigorate the building, are evidence of this commitment to social justice and service." [Dkt. 100-8 at 3].

Former Councilor Janey explained to one invocation speaker that "[o]pening our meetings with prayer provides the Council with a moment of meditation and reflection as we address the important work before us as a body." [Id.]. The content of the invocations is written or determined by the invited speaker. [Dkt. 112 at ¶ 22]. The invocations may take the form of a "blessing," "opening remarks," "a prayer," "a sermon," a "poem," a "reflection," or "something like that." [Dkt. 112 at ¶¶ 21, 29; see Dkt. 100-6 at 107:15-25]. The majority of invocations have been given by individuals from a variety of Christian denominations, but there have "also been a number of representatives from other types of religions," including rabbis and an imam. [Dkt. 112 at ¶¶ 24-26]. There have also been "some laypeople" or "non-religious speakers," including individuals from organizations doing work within the community, who have given invocations. [Id. at ¶¶ 24, 27-28]. For example, the City Clerk has given several invocations, usually reading from a "book of reflections," and a leader of the Boston Debate League, who was also in divinity school, gave an invocation. [Id. at ¶¶ 30-31].

TST provides video evidence of one invocation given at a City Council meeting. See https://www.youtube.com/watch?v=qb5iu6B1TxA ("August 2021 Video"). In that video clip, the City Council is called to order and roll call occurs. Id. at 3:00-3:45. The City Councilor who invited the invocation speaker then introduces the speaker, who founded a church in Boston and served on several boards of directors in Boston. Id. at 4:03-5:57. The speaker, who is a pastor, then takes the microphone. In addition to welcoming remarks, she references the Bible and states, "Let us pray," before she gives a prayer. Id. at 6:24. She states that she "pray[s] for each member of the Boston City Council" and asks for the Lord to give them "understanding," "wisdom," and "knowledge" as they proceed with their duties. Id. at 7:17-9:49. The meeting then proceeds with the Pledge of Allegiance and the first order of business. Id. at 9:56-10:43. Contrary to TST's characterization in its statement of facts, the video shows that the audience is not instructed to stand for the invocation, nor are they directed to participate in the prayer. [See Dkt. 110 at ¶¶ 1, 4].

There are two other videos of City Council meetings mentioned briefly in the parties' papers. One is referenced by the City in its statement of facts, and it is of an imam who gave the invocation in April 2023.² See https://www.youtube.com/watch?v=Ti7QMgpUK8Q&list=PLQaoo0hI2DAjk5JId3kvv1N3WJt8GgBFr&index=24 ("April 2023 Video"). The meeting proceeds much as the other did—the City Clerk conducts roll call, the City Councilor introduces the speaker, and the speaker gives the invocation. The imam opens by stating that he always greets "the audience" by saying, in Arabic, "Peace be upon you." Id. at 5:30-5:44. He then proceeds to read from the Koran and gives a few remarks at the end. In those remarks, he states that it is "incumbent upon you [the City Councilors], as our representatives, to get to know one another, not in the superficial way . . . because you represent me and us," and "the more you get to know each other outside of the walls of the City Hall, the more you all can come together . . . [and] we'll get the benefit of your...